Nine elderly patients died after being kept inside a nursing home that turned into a sweatbox when Hurricane Irma knocked out its air conditioning for three days, even though just across the street was a fully functioning and cooled hospital.
From the perspective of Florida Gov. Rick Scott and relatives of those at the Rehabilitation Center at Hollywood Hills, criminal charges are warranted. But under Florida law, a prosecution might be difficult. Two of three ex-state prosecutors contacted by The Associated Press had doubts as to whether Dr. Jack Michel, the home's owner, or any of his employees will be charged.
All agreed that any criminal prosecutions will hinge on whether the nursing home staff made honest mistakes or were "culpably negligent." Florida defines that as "consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury."
Hollywood police and the state attorney's office are investigating.
The home has said it used coolers, fans, ice and other methods to keep the patients comfortable — and that might be enough to avoid prosecution.
"There is a difference between negligence, which is what occurs when you are not giving a particular standard of care vs. culpable negligence," said David Weinstein, a former state and federal prosecutor now in private practice. "So if they are doing everything humanly possible given the circumstances and this all still happened it may be negligent and provide the basis for a civil lawsuit, but not enough for criminal charges."
Retired University of Florida law professor Bob Dekle, who prosecuted serial killer Ted Bundy as an assistant state attorney, said he doubted charges would be brought.
"I would rather be a defense attorney on this case than a prosecutor," Dekle said. "There are some cases that are better tried in civil court than criminal and this might be one of them."
Former U.S. Attorney Kendall Coffey disagreed.
"Given the magnitude of the tragedy and the apparent availability of a hospital 50 yards away, prosecutors are not going to accept that this was an unavoidable tragedy," he said.
Gary Matzner, the nursing home's attorney, said in a statement that Michel and the staff are cooperating with the investigation.
"The center and its employees and directors are devastated by this tragedy," he said.
Irma reached Broward County on Sept. 10. The home has said a felled tree took out a transformer that powered the air conditioner, but it maintained power otherwise. It said it reported the loss to Florida Power & Light and was promised repairs in the next two days, but the utility never arrived.
Scott's office said that over those two days, home administrators Jorge Carballo and Natasha Anderson were in contact with the state about the failed air conditioner but never said the situation had become dangerous. The state said they were told to call 911 if needed.
On the afternoon of Sept. 12, the home borrowed portable air coolers from Memorial Regional Hospital, the trauma center across the street. Later that night, home administrators said, a physician's assistant checked the patients and none were overheated and the building temperature never exceeded 80 degrees. Under state law, the temperature was not supposed to exceed 81 degrees.
In the early hours of Sept. 13, the deaths began. Three 911 calls were made before 6 a.m., causing Memorial staff to rush across the street to offer assistance. Doctors and nurses said they found the home's staff working to cool the patients, although they and police have said the facility was very hot.
No temperature reading has been released as police have said that is part of the investigation.
Three people died on the home's second floor and six succumbed at the hospital, including a 93-year-old man who died Tuesday. The state said four of the deceased had body temperatures between 107 (41.6 Celsius) and 109 (42.7 Celsius) degrees.
Dr. Randy Katz, the hospital's emergency director, said last week it was impossible to say whether any of the dead would have survived if they had gotten to the hospital hours earlier.
The number of deaths and injured could be a determining factor in whether to bring charges. Weinstein said prosecutors could argue that after the first patients became seriously ill, administrators should have known an evacuation was necessary. Dekle agreed the number could be key.
"The more dead victims there are in a homicide case, the less likely a jury is to find reasonable doubt," Dekle said.